Library: Policy

340:75-19-10. Emergency removal of Indian children

• 1

Revised 7-1-13

(a) Emergency removal and placement of the Indian child domiciled on but temporarily located off the reservation.  Per Section 1922 of Title 25 of the United States Code (25 U.S.C. § 1922) of the Federal Indian Child Welfare Act, the Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation from his or her parent or Indian custodian is subject to emergency removal and emergency placement in a foster home or institution, under applicable State law, to prevent imminent physical damage or harm to the child.  The State authority, official, or agency involved in the emergency removal, as appropriate:

(1) ensures the emergency removal or placement terminates immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child;

(2) expeditiously initiates a child custody proceeding;

(3) transfers the child to the jurisdiction of the appropriate Indian tribe; or

(4) restores the child to the parent or Indian custodian.

(b) Emergency order removing the Indian child accompanied by affidavit.  Per Section 40.5 of Title 10 of the Oklahoma Statutes (10 O.S. § 40.5):

(1) when the court order authorizes the emergency removal of the Indian child from the child's parent or Indian custodian in accordance with 25 U.S.C. 21 1922, the order is accompanied by an affidavit containing:

(A) the names, tribal affiliations, and addresses of the Indian child, the parents of the Indian child, and Indian custodians if any;

(B) a specific and detailed account of the circumstances and the reasons for the removal; and

(C) a statement of the specific actions that have been taken to assist the parents or Indian custodians so that the child may be safely returned to their custody; and

(2) no pre-adjudicatory custody order may remain in force or in effect for more than 30 calendar days without a determination by the court, supported by clear and convincing evidence and the testimony of at least one qualified expert witness, that custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.  The court may, for good and sufficient cause shown, extend the emergency custody order for an additional 60 calendar days.

INSTRUCTIONS TO STAFF 340:75-19-10

1.The child welfare (CW) specialist:

(1) inquires about the child's residence and domicile to determine if the child resides on state or tribal land.For an Indian child, "domicile" means the residence of the Indian child's parents.In the case of an Indian child whose parents are not married to each other, the residence of the Indian child's mother is the domicile;

(2) immediately contacts the Indian child welfare (ICW) worker to assist with conducting the investigation when the child normally resides on tribal land but is temporarily located on state land.When the ICW worker, tribal-identified child protection services, or tribal designee is unable to assist in the investigation, the CW specialist responds to the referral according to the priority guidelines in Oklahoma Administrative Code (OAC) 340:75-3-130;

(3) seeks emergency removal of the child through preparation of an affidavit documenting imminent safety risks per OAC 340:75-3-300 when it is determined:

(A) the child is in need of immediate protection from impending danger and is found on state land but normally resides on tribal land; and

(B) the tribal court is not able to assume emergency custody of the child; and

(4) immediately notifies the ICW program:

(A) of reports of abuse or neglect of the Indian child and the status of the investigation or assessment;

(B) prior to the removal of the Indian child from the home, when possible; and

(C) no later than the next business day when the Indian child has been removed from the home.